Citation Nr: 0028458
Decision Date: 10/27/00 Archive Date: 11/01/00
DOCKET NO. 96-23 438A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Chicago,
Illinois
THE ISSUE
The propriety of the rating assigned for service-connected
bipolar disorder.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
G. Strommen, Counsel
INTRODUCTION
The veteran served on active duty from September 1974 to
October 1984.
This case comes before the Board of Veterans' Appeals (Board)
from a rating decision rendered in March 1996, in which the
Chicago, Illinois, Regional Office (RO) of the Department of
Veterans Affairs (VA) granted the veteran's claim of
entitlement to service connection for chronic bipolar
disorder, mixed type, assigning a 10 percent rating thereto,
effective October 6, 1995. The veteran subsequently
perfected an appeal of that decision, objecting to the
assigned rating.
In a February 2000 decision, this case was remanded to the RO
for additional development. Upon completion of this
development the RO again denied the veteran's claim.
Accordingly, this case is properly before the Board for
appellate consideration.
FINDINGS OF FACT
1. All information necessary for an equitable disposition of
the veteran's claim has been developed.
2. The medical evidence shows that the veteran's bipolar
disorder is well-controlled on medication, his cognitive
testing was intact, he did not have hallucinations or
suicidal/homicidal ideations, his speech was within normal
limits, and once he has been able to hold a full-time job for
the past two and one-half years.
CONCLUSION OF LAW
The criteria for a schedular evaluation greater than 10
percent for bipolar disorder, chronic mixed type, are not
met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R.
§§ 4.126, 4.130, Diagnostic Code 9432 (1999); 38 C.F.R.
§§ 4.130, 4.132, Diagnostic Code 9206 (1996).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The appellant's contentions regarding the increase in
severity of his bipolar disorder constitute a plausible or
well-grounded claim. Proscelle v. Derwinski, 2 Vet. App. 629
(1992). The Board further finds that the VA has met its
statutory obligation to assist him in the development of his
claim. 38 U.S.C.A. § 5107(a) (West 1991).
Entitlement to service connection for bipolar disorder was
first granted by the RO in a March 1996 decision and a 10
percent evaluation was assigned thereto, effective the date
of the veteran's claim. This evaluation was based on VA
psychiatric examination results noting that the veteran was
taking Lithium to control his condition, was living with his
mother but working to improve his skills, and his cognitive
testing was entirely intact. The veteran perfected an appeal
of this decision seeking a greater evaluation for his
disability. In February 2000, the Board remanded the
veteran's claim for a VA examination and so that VA records
could be obtained. In a letter dated in February 2000, and
again in a letter dated in May 2000, the RO informed the
veteran that an examination was to be scheduled and that
failure to report for the examination would result in the
denial of his claim. The veteran failed to report to the
scheduled May 2000 examination. In a subsequent May 2000
statement to the RO, the veteran asserted that he was not
seeking a total disability rating or unemployability status,
that he was not on or seeking Social Security Administration
benefits, and that he was being treated at the VA clinic in
Peoria, Illinois, and he "hoped" that these records made an
examination unnecessary. He offered no explanation for his
failure to report for his examination. The records from the
Peoria VA clinic were obtained and associated with the claims
file.
In light of the veteran's statements, and his failure to show
up to his May 2000 VA examination despite being informed of
the consequences for failing to do so, the Board finds that
remanding for further attempts to schedule the veteran for an
examination are not required. Based on the record, the VA
has adequately attempted to satisfy its duty to assist by
scheduling the examination and providing notice of it to the
veteran. Additionally, the veteran has expressed a desire to
rely on the record without an examination, and, most
significantly, once notice of the consequences of a failure
to report for an examination has been provided, as it was
here, regulations indicate that a claim for an increase can
be denied, so an attempt to schedule another examination is
not necessary. 38 C.F.R. § 3.655 (1999); see also Wood v.
Derwinski, 1 Vet. App. 190, 193 (1991).
According to a recent decision of the United States Court of
Appeals for Veterans Claims (known as the United States Court
of Veterans Appeals prior to March 1, 1999) (hereinafter
"Court"), because this appeal ensues from the veteran's
disagreement with the rating assigned in connection with his
original claim, the potential for the assignment of separate,
or "staged," ratings for separate periods of time, based on
the facts found, must be considered. Fenderson v. West, 12
Vet. App. 119 (1999). In this case, the RO has not assigned
separate staged ratings for his acquired psychiatric
disorder. However, in the original rating decision in March
1996 and the subsequent statements of the case, the RO
addressed all of the evidence of record in evaluating the
veteran's disability. Thus, he was not harmed by the absence
of a "staged" rating. See Fenderson v. West, 12 Vet. App.
119. Additionally, the veteran was not prejudiced by the
RO's referring to his claim as an "increased rating"
although the appeal has been developed from his original
claim.
In determining the current level of impairment, the
disability must be considered in the context of the whole
recorded history, including service medical records.
38 C.F.R. §§ 4.2, 4.41 (1999); Schafrath v. Derwinski, 1 Vet.
App. 589 (1991). However, the degree of impairment resulting
from a disability is a factual determination and the Board's
primary focus in such cases is upon the current severity of
the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58
(1994); see also Solomon v. Brown, 6 Vet. App. 396, 402
(1994). With regard to the veteran's request for an
increased schedular evaluation, the Board will only consider
the factors as enumerated in the applicable rating criteria.
See Massey v. Brown, 7 Vet. App. 204, 208 (1994); Penorio v.
Derwinski, 2 Vet. App. 625, 628 (992).
The regulations governing the evaluation of psychiatric
disorders were revised effective November 7, 1996, and
because the veteran's claim was filed in October 1995, prior
to the revision, he is entitled to evaluation under the
regulations, old or new, which offer him the most favorable
outcome. See 38 U.S.C. § 1155; DeSousa v. Gober, 10 Vet.
App. 461, 465-67 (1997); Karnas v. Derwinski, 1 Vet. App.
308, 313 (1991). However, where the amended regulations
expressly provide an effective date and do not allow for
retroactive application, the veteran is not entitled to
consideration of the amended regulations prior to the
established effective date. See also 38 U.S.C.A. § 5110(g)
(West 1991) (where compensation is awarded pursuant to any
Act or administrative issue, the effective date of such award
or increase shall be fixed in accordance with the facts
found, but shall not be earlier than the effective date of
the Act or administrative issue). Therefore, the Board must
evaluate the veteran's claim for a disability rating in
excess of 10 percent from November 7, 1996, forward under
both the old criteria in the VA Schedule for Rating
Disabilities and the current regulations in order to
ascertain which version is most favorable to his claim, if
indeed one is more favorable than the other. For any date
prior to November 7, 1996, the Board cannot apply the revised
mental disorders rating schedule.
Pursuant to VA's Schedule for Rating Disabilities, prior to
November 7, 1996, the severity of a service-connected bipolar
disorder was evaluated by application of the criteria set
forth in 38 C.F.R. § 4.132 (1999) (Schedule), Diagnostic Code
9206. Under this provision, a 10 percent rating was
warranted for a mild impairment of social and industrial
adaptability; a 30 percent rating for a definite impairment
of social and industrial adaptability; a 50 percent rating
for a considerable impairment of social and industrial
adaptability; a 70 percent rating for an atypical psychosis
with lesser symptomatology such as to produce severe
impairment of social and industrial adaptability; and a total
rating for active psychotic manifestations of such extent,
severity, depth, persistence or bizarreness as to produce
total social and industrial inadaptability.
Under the regulations in effect as of November 7, 1996,
38 C.F.R. § 4.130 (1999), Diagnostic Code 9440, (revised
regulations), a 10 percent rating requires evidence of
occupational and social impairment due to mild or transient
symptoms which decrease work efficiency and ability to
perform occupational tasks only during periods of significant
stress, or, symptoms controlled by continuous medication. A
30 percent rating is warranted for occupational and social
impairment with occasional decrease in work efficiency and
intermittent periods of inability to perform occupational
tasks (although generally functioning satisfactorily, with
routine behavior, self-care, and conversation normal), due to
such symptoms as depressed mood, anxiety, suspiciousness,
panic attacks (weekly or less often), chronic sleep
impairment, mild memory loss (such as forgetting names,
directions, recent events); a 50 percent rating is warranted
when the veteran has occupational and social impairment with
reduced reliability and productivity due to such symptoms as:
flattened affect, circumstantial, circumlocutory, or
stereotyped speech, panic attacks more than once a week,
difficulty in understanding complex commands, impairment of
short and long term memory, impaired judgment, impaired
abstract thinking, disturbances of motivation and mood,
difficulty in establishing and maintaining effective work and
social relationships; a 70 percent rating is applicable for
occupational and social impairment with deficiencies in most
areas, such as work, school, family relations, judgment,
thinking, or mood, due to such symptoms as: suicidal
ideation, obsessional rituals which interfered with routine
activities, speech intermittently illogical, obscure, or
irrelevant, near-continuous panic or depression affecting the
ability to function independently, appropriately and
effectively, impaired impulse control (such as unprovoked
irritability with periods of violence), spatial
disorientation, neglect of personal appearance and hygiene,
difficulty adapting to stressful circumstances (including
work or a worklike setting), inability to establish and
maintain effective relationships; and a total schedular
rating, or 100 percent evaluation, is warranted for total
occupational and social impairment, due to such symptoms as:
gross impairment in thought processes or communication,
persistent delusions or hallucinations, grossly inappropriate
behavior, persistent danger of hurting self or others,
intermittent inability to perform activities of daily living
(including maintenance of minimal personal hygiene),
disorientation to time or place, memory loss for names of
close relatives, own occupation, or own name.
In evaluating the severity of the veteran's bipolar disorder,
the Board first notes the veteran's May 2000 statement in
which he averred that he has been employed full-time as a
landscaper for two and one-half years, was still taking
Lithium twice a day, and had appointments every six months
with his VA psychiatrist during this timeframe. He also
stated that he had some problems with his short term memory,
and small mood swings, and as noted above, stated that he was
not seeking a total rating or unemployability.
In addition, in an August 1996 hearing before the RO the
veteran testified that he had bachelors and masters degrees
in business administration. He further testified that he
lived with his mother, had some friends, attended some family
functions, and some shows. He noted that he slept well and
had no hallucinations and takes his medication regularly. He
also reported that he worked the past two summers part time
as a landscaper, and kept busy doing yard work and helping
his neighbors with odd jobs, and had applied for several jobs
but had not heard any responses. He felt that his mental
disability served as an obstacle in obtaining employment.
Historically, the record indicates that the veteran had
bipolar disorder in service, and was essentially unemployed
from discharge until 1997, with the exception of a few jobs
lasting only several months at a time. In 1997 he began
working part time in a flower shop, then got a job with a
sub-company of Caterpillar and ultimately was employed full
time in late 1997 early 1998 by a landscaper, for whom he
currently still works.
Prior to 1989 he had difficulty with the manic phases of his
disorder because he did not take his medication, since 1989
he has taken his medication, Lithium, regularly and has
remained on an "even keel." During the timeframe during
which he was not taking his medication he was hospitalized on
at least two occasions and had several brushes with the law,
but he has not been hospitalized or been in trouble since
taking his medication regularly.
In November 1995 the veteran was evaluated by a VA examiner.
In his report, the examiner noted on objective findings that
the veteran was neatly dressed, freely verbal, articulate,
relevant, logical, and coherent. His mood appeared depressed
but with appropriate affect and stable emotional tone, and he
recognized his psychotic behaviors in the past as part of his
manic psychosis. He was fully oriented with no suicidal or
homicidal ideation, and cognitive testing was entirely intact
for retention, recall, digit span, serial 7s, intelligence,
fund of knowledge, similarities and differences,
comprehension and judgment. The examiner also noted that the
veteran complained of trouble concentrating, and that he
lived with his mother in a sheltered environment performing
yard work and other work to improve his skills.
Relevant VA outpatient treatment records from 1994 to 2000
show that he was considered to be in remission for this
entire time period with his bipolar disorder well-controlled.
Specifically, in a February 1995 notation it was reported
that he complained of memory and concentration problems, but
that his mood, appetite, and irritability were good or
getting better. In July 1995 he was noted to be well-
groomed, coherent, and friendly, with speech within normal
limits. In March 1997, he was working part time in a garden
shop, looking for full-time work, and had finished a business
course. It was noted in October 1997 that he worked every
day and could not come in for appointments except on the
weekends; at this time he had gotten a job with a
subcontractor for Caterpillar. In August 1998 he was
approved to obtain a drivers license, and it was reported
that he was still working for the landscaping company.
As previously noted the veteran failed to report for a more
recent VA examination than the November 1995 report, and the
Board has determined that obtaining another examination is
not necessary since the veteran was provided notice of the
consequences of failing to report. 38 C.F.R. § 3.655 (1999).
The evidence of record more nearly approximates the criteria
for a 10 percent evaluation under both the old and revised
regulations. Beginning with the criteria in effect prior to
November 7, 1996, to warrant a 30 percent evaluation, the
next highest rating, the veteran's disability must constitute
a definite impairment of his social and industrial
adaptability. The medical evidence indicates that the
veteran's bipolar disorder has been in remission since at
least February 1995, well-controlled on Lithium. Although he
was and is living with his mother, the record consistently
demonstrates that he was searching for work, able to work
part-time, and used unpaid chores and opportunities to
improve his skills and marketability in the workplace.
Additionally, he testified in August 1996 that he had
friends, attended some social functions with family, and
would go to shows.
For the period after 1996, the records indicate that he was
working part time selling flowers in a florists shop,
indicating a certain degree of both social and industrial
adaptability, which was further demonstrated by his ability
to obtain a full time job with a landscaping company, and
maintain this employment successfully for over two years.
As for the criteria for a rating greater than 10 percent
under the revised regulations, as noted above, the next
highest rating is a 30 percent rating, which is warranted for
occupational and social impairment with occasional decrease
in work efficiency and intermittent periods of inability to
perform occupational tasks (although generally functioning
satisfactorily, with routine behavior, self-care, and
conversation normal), due to such symptoms as depressed mood,
anxiety, suspiciousness, panic attacks (weekly or less
often), chronic sleep impairment, mild memory loss (such as
forgetting names, directions, recent events). The medical
evidence indicates that the veteran has not had intermittent
periods of inability to perform occupational tasks since he
began taking his medication on a regular basis, in fact, the
medical evidence has indicated a sustained remission for his
bipolar disorder. While the veteran has not been working
consistently during this time, this has not been because his
bipolar disorder has been interfering with his skills as much
as he has been unable to find a job. Moreover, the Board
notes that the veteran himself testified that he was
tentative in his job search because he feared rejection due
to his disability, further hampering his occupational success
until he obtained his current employment as a landscaper.
As for symptomatology, the medical evidence shows that the
veteran has not had a depressed mood, has slept well, and
that his cognitive functioning is intact. While he reports
small mood changes and problems with short term memory, any
disability connected with these symptoms alone is accounted
for in his current 10 percent evaluation. Accordingly, the
evidence of record more nearly approximates the criteria for
a 10 percent evaluation under the revised regulations as
well.
Consequently, under both the old and revised regulations the
veteran's current 10 percent evaluation adequately
compensates his level of disability for a bipolar disorder,
and a staged rating is not warranted. Therefore, the
veteran's claim of entitlement to a rating greater than 10
percent for his bipolar disorder is denied.
Preliminary review of the record reveals that the RO has not
expressly considered referral of the case to the Chief
Benefits Director or the Director, Compensation and Pension
Service for the assignment of an extraschedular rating under
38 C.F.R. § 3.321(b)(1) (1999). This regulation provides
that to accord justice in an exceptional case where the
schedular standards are found to be inadequate, the field
station is authorized to refer the case to the Chief Benefits
Director or the Director, Compensation and Pension Service
for assignment of an extraschedular evaluation commensurate
with the average earning capacity impairment. The governing
criteria for such an award is a finding that the case
presents such an exceptional or unusual disability picture
with such related factors as marked interference with
employment or frequent periods of hospitalization as to
render impractical the application of the regular schedular
standards. The Court has held that the Board is precluded by
regulation from assigning an extraschedular rating under 38
C.F.R. § 3.321(b)(1) in the first instance, however, the
Board is not precluded from raising this question, and in
fact is obligated to liberally read all documents and oral
testimony of record and identify all potential theories of
entitlement to a benefit under the law and regulations.
Floyd v. Brown, 9 Vet. App. 88 (1996). The Court has further
held that the Board must address referral under 38 C.F.R. §
3.321(b)(1) only where circumstances are presented which the
Director of VA's Compensation and Pension Service might
consider exceptional or unusual. Shipwash v. Brown, 8 Vet.
App. 218, 227 (1995). Having reviewed the record with these
mandates in mind, the Board finds no basis for further action
on this question. VAOPGCPREC. 6-96 (1996).
ORDER
Entitlement to a rating greater than 10 percent for bipolar
disorder, chronic, mixed type, is denied.
JEFF MARTIN
Veterans Law Judge
Board of Veterans' Appeals